Children’s involvement in care and protection systems

Introduction

2.58 Children involved in care and protection systems may have some of the most extensive dealings with legal processes. These processes include the investigation of suspected abuse and neglect, involvement in courts and continued dealings with various aspects of the system after the court processes are finished.

Reporting and investigation of child abuse and neglect

2.59 For the purposes of national data collection, an abused or neglected child is defined as a child who has been, is being or is likely to be subject to sexual, emotional or physical actions or inactions that resulted in or are likely to result in significant harm or injury to the child. The person believed to be responsible for the action/inaction must be someone with responsibility for caring for the child, such as a parent or guardian.[156] The States and Territories have primary responsibility for the investigation of suspected cases of child abuse and neglect and are responsible for taking appropriate action in these cases. There are significant differences in legislation, terminology, procedures and processes among the States and Territories.[157]

2.60 During 1995-96, 91 734 cases of suspected child abuse and neglect, involving 71 766 individual children, were reported to State and Territory welfare departments.[158] 67 816 (74%) of these notifications were investigated, 12 649 (14%) were dealt with by other means and 11 269 (12%) were not investigated at all.[159] Of the cases of child abuse and neglect investigated, 61 383 (91%) were finalised during 1995-96 and 29 833 (49%) of these were substantiated.[160] These substantiated cases involved 25 558 children.[161] A further 1 748 children (2 372 cases) were allocated to the ‘child at risk’ category in those jurisdictions that have this category.[162] The rates at which children are subject to notification, investigation and substantiation vary considerably between States and Territories.

Table 2.15 1995-96 rates at which children aged 0 to 16 were subject to notification, investigation and substantiation by State/Territory, per 1000 children in the relevant population[163]

State/Territory

Notifications

Finalised investigations

Substantiations

NSW

15.8

13.8

8.1

Victoria

22.0

11.9

6.0

Queensland

14.4

10.4

4.0

Western Australia

7.2

5.3

2.2

South Australia

18.0

14.4

6.0

Tasmania

18.6

8.9

1.8

ACT

14.9

11.1

4.9

Northern Territory

8.7

8.4

4.4

Australia

16.3

11.6

5.8

 

2.61 As the above table shows, in 1995-96 Victoria and Tasmania had the highest proportion of children subject to notification while the Northern Territory and Western Australia had the lowest. The substantiation rate was highest for children in NSW and the lowest for Tasmanian children. This variation may be explained to some extent by mandatory reporting requirements or differing policies about what constitutes an investigation or a substantiation.[164]

2.62 Further analysis of the overall substantiation rate figures reveals that the highest numbers of substantiated reports of abuse or neglect involved children under the age of 1 (2 355), followed by those involving children aged 14 and 13 (2 270 and 2 144 respectively).[165] Of all substantiated reports, 53% or 15 811 substantiated cases concerned girls.[166]

2.63 Indigenous children are over-represented in all stages of reporting and investigation of suspected child abuse and neglect across Australia. Rates of substantiation for Indigenous children vary widely between States and Territories.

Table 2.16 1995-96 rates at which Indigenous and non-Indigenous children aged 0 to 16 were subject to notification, investigation and substantiation by State/Territory, per 1000 children in the relevant population[167]

State/Territory

Notifications

Indigenous Other

Finalised investigations

Indigenous Other

Substantiations

Indigenous Other

NSW

55.1 14.8

48.3 12.9

30.1 7.5

Victoria

89.9 21.4

61.1 11.5

32.0 5.8

Queensland

42.4 13.1

34.2 9.3

15.1 3.5

Western Australia

27.5 6.2

21.9 4.5

9.3 1.8

South Australia

61.8 16.9

51.0 13.5

24.7 5.6

Tasmania

27.1 18.3

11.6 8.8

2.6 1.8

ACT

104.5 13.9

84.7 10.3

47.6 4.4

Northern Territory

10.0 7.9

9.8 7.6

5.6 3.6

Australia

42.3 15.5

34.4 10.9

18.0 5.4

2.64 As the above table shows, 42.3 out of every 1000 Indigenous children in Australia were involved in notifications of suspected child abuse and neglect and 18 out of every 1000 Indigenous children were involved in substantiated abuse and neglect cases. By comparison, only 5.4 out of every 1000 non-Indigenous children were subjects of substantiated reports. The ACT and Victoria had the highest substantiation rates for Indigenous children, while Tasmania and the Northern Territory had the lowest.

Children under care and protection orders

2.65 Once child abuse or neglect has been substantiated, the welfare department has a number of options, including bringing the matter to court and seeking a care and protection order.[168] Only a small proportion of children in substantiated cases become subjects of care and protection orders. In 1995-96, of the more than 25 500 children subjects of substantiated abuse and neglect allegations in Australia, 4 123 were placed on new care and protection orders.[169]

2.66 On 30 June 1996, there were 13 241 children under care and protection orders in Australia,[170] with around 10 500 children in supported alternative care placements, such as foster care or residential care, as the result of a care and protection order.[171] Children can also be placed in alternative care voluntarily. Overall there were 13 979 children in supported alternative care placements on 30 June 1996 and during the 1995-96 year around 20 000 children were in at least one such placement.[172]

2.67 Most children placed in alternative care are placed in a home-based setting. On 30 June 1996 , 12 162 children (87% of all children in supported alternative care placements) were in a home-based setting and 1 817 (13%) were in a facility setting.[173] Of the children in home-based settings, 6 500 (54%) were in foster homes and 294 (2%) were in group homes, with the rest most likely placed with their own extended families.[174]

2.68 Indigenous children are substantially over-represented in care and protection placements. Although only two out of every 1000 non-Indigenous children in Australia were in a supported alternative care placement on 30 June 1996, approximately 20 out of every 1000 Indigenous children were in such a placement.[175] Overall, 19% of all children in alternative placements were Indigenous even though Indigenous children constituted only 3.5% of Australia’s child population.[176]

Children’s representation in care and protection proceedings

2.69 Children whose care and protection matters are brought to court may or may not actually participate in the court’s processes. One indication of the number of children who participate and are heard in this process is the number of children who are actually represented by a legal practitioner in these proceedings. While not all jurisdictions require that children in this situation will be legally represented, and while not all children’s legal representatives act on the instructions of their child clients (or even meet with them, in some jurisdictions), statistics provided by the Legal Aid Commissions in many jurisdictions regarding their representation of children in care and protection proceedings provides an indication of the number of children who may be involved in this care and protection litigation process.

Table 2.17 Grants of legal aid to children for care and protection proceedings, 1996-97[177]

State/Territory

Total number of grants

Comments

Western Australia

72

70 of these matters were handled by in-house legal practitioners

Tasmania

not available

Anecdotal evidence suggests that only a very small percentage of children are represented. Legal Aid grants are mostly for parents in these proceedings.

South Australia

329

82.7% of these matters were handled by in-house legal practitioners and 17.3% by private practitioners. Representation was offered to all children subject to care and protection proceedings and was declined in only 2 instances by young people aged 16.

ACT

219

60% of these matters were handled by in-house legal practitioners and 40% by private practitioners. These grants represent 100% of children subject to care and protection proceedings in the ACT.

Queensland

1

There is no automatic right to representation in these matters, so Legal Aid only becomes involved at the request of a party

Victoria

1 452

57.4% of these matters were handled by in-house legal practitioners and 42.6% by private practitioners

Northern Territory

2

The Department for Health and Community Services provides the ‘child representative’ in care and protection matters. Therefore it is unusual for legal aid grants to be made for these purposes.

[156] A Broadbent & R Bentley Child Abuse and Neglect Australia 1995-96 Child Welfare Series 17 AIHW Canberra 1997, 3.

[157] AIHW Australia’s Welfare Services and Assistance 1995 AIHW Canberra 1995, 148.

[158] A Broadbent & R Bentley Child Abuse and Neglect Australia 1995-96 Child Welfare Series 17 AIHW Canberra 1997, 25.

[159] id 9.

[160] ibid.

[161] id 25.

[162] ibid. See para 17.37.

[163] A Broadbent & R Bentley Child Abuse and Neglect Australia 1995-96 Child Welfare Series 17 AIHW Canberra 1997, 28.

[164] eg jurisdictions that assign children to the ‘child at risk’ category rather than ‘substantiated’ may have lower substantiation rates than those States and Territories that place these children in the ‘substantiated’ category, while States that count these types of cases as ‘unsubstantiated’ could have even lower substantiation rates: see para 17.37.

[165] A Broadbent & R Bentley Child Abuse and Neglect Australia 1995-96 Child Welfare Series 17 AIHW Canberra 1997, 41.

[166] The ratio of girls to boys differed greatly depending on their age group and the type of abuse or neglect substantiated. eg boys aged 0 to 4 and 5 to 9 were more often the subjects of substantiated physical abuse (57% and 60% of physical abuse cases in the respective age groups), emotional abuse (51% and 52) and neglect cases (52% and 55%), while girls aged 10 to 14 and 15 to 17 were much more often the subjects of substantiated physical abuse (52% and 70%) and emotional abuse (53% and 64%). Girls were more often the subjects of substantiated sexual abuse cases in all age groups. See A Broadbent & R Bentley Child Abuse and Neglect Australia 1995-96 Child Welfare Series 17 AIHW Canberra 1997, 38.

[167] id 51-52.

[168] The names and types of orders vary around Australia. Orders are collectively termed ‘care and protection’ orders in this Report.

[169] A Broadbent & R Bentley Children on Care and Protection Orders Australia 1995-96 Child Welfare Series 18 AIHW Canberra 1997, 18.

[170] Of these children, 8 744 (66%) were on guardianship orders and 4 497 (34%) were on non-guardianship orders, including custody or supervisory orders and undertakings: id 4.

[171] Steering Committee for the Review of Commonwealth/State Service Provision Report on Government Service Provision Industry Commission Melbourne 1997, 547.

[172] ibid. Note that these figures exclude children placed voluntarily in Qld and NT as these jurisdictions could only provide data on children on legal orders.

[173] Ibid.

[174] Ibid.

[175] Ibid.

[176] ibid. See also para 2.5.

[177] Derived from Letter from R Lindsay, Acting Director Legal Aid WA 25 August 1997; Information from B Cross, Assignments Manager Tas Legal Aid Commission 22 August 1997; Letter from J Battersby, Policy and Research Officer Legal Services Commission of SA 13 August 1997; Letter from C Staniforth, Chief Executive Officer Legal Aid ACT 13 August 1997; Letter from C Reynolds, Executive Legal Officer Legal Aid Qld 25 August 1997; Letter from R Cornall, Managing Director Legal Aid Vic 13 August 1997; Letter from J Stone, NT Legal Aid Commission 9 September 1997. NSW is not included in this table as NSW Legal Aid did not supply this information to the Inquiry.